Harper v Austin Productions Ltd [1994] UKEAT 634_94_1011

EAT
Harper v Austin Productions Ltd
[1994] UKEAT 634_94_1011 · 1994-11-10
MR JUSTICE PILL: This is an Appeal by Mrs L.A. Harper against the Decision of an Industrial Tribunal held at Leicester on 3 May 1994. The Tribunal unanimously decided that Mrs Harper had not been dismissed unfairly by her employers, Austin Productions Ltd.The Applicant was employed as a Paint Sprayer and began work for the company in April 1988. Some employees were dismissed for redundancy in 1990. In 1993 the American Parent Company notified the company that two ranges of product would be discontinued and the requirements of the business for employees to do work of particular kinds had diminished.In August 1993, the General Manager notified the work-force. It was decided by the company that in their view it would not be appropriate to dismiss on a "last in, first out" basis. Reasons were given for that. It was decided to use the employees' absence records as a means of selection for redundancy. There were records before the Industrial Tribunal and there was a record of the worst ten employees by that criterion and the Applicant was top of the list.The Tribunal considered the records produced to them and we will return to that subject. The Applicant was selected for dismissal by reason of redundancy and she was invited into Mr Day's office on 20 August 1993. She was given a letter setting out the background and pointing out to her that she had the worst absence record even if there was excluded her absence due to an industrial injury which, unfortunately, occurred on 8 December 1990. An opportunity for further discussion was given but the Appellant did not attend. For present purposes nothing turns upon that.Dealing with the merits of Mrs Harper's Application the Tribunal correctly posed the questions which they had to answer. They concluded in this way:
"16. Dealing with the substantial merits, we think that the choice of absence record as the sole criterion for selecting employees for redundancy dismissal was itself reasonable. It has the merit of being objective. It is a measure of employee's reliability. We cannot criticise the respondent for using it"
17. Secondly, taking into account equity, we have to look at the way in which the respondent handled the redundancy. Particularly, we have to look at the way in which the respondent treated the applicant when dismissing her".Reference is then made to the consultation which occurred and to the further opportunity which was given to Mrs Harper.The Tribunal concluded in this way:"18. In all those circumstances, we are satisfied that the respondent acted reasonably in treating redundancy as sufficient reason for dismissing the applicant and this application is dismissed".The Notice of Appeal contains this ground:
"We have received new evidence that was not available on the day of the Tribunal, Friday 17 June 1994.
That date is a reference no doubt to the review which was requested and the Tribunal's letter following that Application is dated 21 June 1994. Upon hearing the Applicant's and the Respondents' representative, the Chairman reviewed the papers and the decision. He stated: "It seems to him that no new issue of fact has become available since the full hearing and he therefore cannot see any basis for a review. The proper forum for Mr Murdoch and Mrs Harper's argument is the Employment Appeals Tribunal".Mr Murdoch is the representative of the Corby & District Welfare Rights Advisory Service who appeared for Mrs Harper before the Industrial Tribunal. We have had the benefit today of submissions from Mr McKenzie who is also a representative of that service. The submission is that a material document was not before the Industrial Tribunal. Had the document been before the Tribunal the decision might have been different.The decision of the Tribunal gives every indication that full submissions were made on relevant points by Mr Murdoch on behalf of Mrs Harper. Paragraph 7:"Mr Murdoch on her behalf has expressed considerable concern at the state of the records. Particularly, he points to the fact that two columns in the records have been changed from `authorised' and `unauthorised' to `notified' and `not notified'. He suggests that this change has been brought about in order to widen the net and particularly to catch the applicant so as to render inevitable selection for redundancy dismissal".At paragraph 10 the Tribunal state that where the evidence of Mrs Harper differed from that of Mr Day, they preferred the evidence of Mr Day, the employers' general manager. Mr McKenzie submits that had the further document been available the Tribunal might have taken a different view of Mr Day's credibility.The relevant document (the fresh document) is headed "Record of Absenteeism and Lateness". The document before the Tribunal has the same general heading, but is different in certain respects. First, the document before the Tribunal took the absences only up to March 1991, whereas the fresh document, fresh in the sense that it was not in the possession of Mr Murdoch at the hearing, gives absences to a later date. Secondly, and this is the point particularly relied upon, the headings on the document before the Tribunal categorising absences are `unauthorised' and `authorised'. The headings on the fresh document are `not notified' and `notified' . That was a difference which was canvassed at the hearing before the Industrial Tribunal. It is dealt with at paragraphs 8 and 9 of their decision:
"8. The categories were changed because it was felt in 1992 that the words `authorised' and `unauthorised' did not accurately convey what was meant by those categories. The requirement of the respondent is that persons who were to be absent from work on any particular occasion should notify their absence by 10.00 am on the very day. It was thought appropriate to alter the categories so as to reflect those occasions when that requirement had been met and those occasions when it had not. For the purposes of selection, however, all absences were taken into account. The record was also amended by there being added to it the reasons on each occasion for absence. Those were taken from contemporaneous notification slips, which have been produced to us"
9. We are quite satisfied with the authenticity of the records produced to us. We do not find anything sinister in the alterations which have been drawn to our attention. Therefore, we accept the record as accurate and that the record shows the applicant as being the employee with the worst attendance record throughout her employment".We believe that when referring to `alterations' the Tribunal had in mind that where, on the document before them the words `not notified' and `notified' appear, there appears to have been a `blanking out' of the earlier words which, it can safely be assumed we think, were `unauthorised' and `authorised'.Mr McKenzie puts it in this way. Whereas the employers contend, and did so in material placed before the Chairman when a review was sought, that the fresh document had been produced in 1992, there is evidence that it came into the possession of Solicitors acting for Mrs Harper in her personal injury claim in 1994. That document and not the document before the Tribunal was disclosed to them in that form as late as 1994 by Solicitors acting for the employers in relation to their claim.It was submitted that it follows that the alterations which occurred, occurred not in 1992 as Mr Day submitted, but at a later time and that there is a sinister implication which would affect the credibility of Mr Day. We accept that on a date after 1992, the fresh document was still being disclosed, but we are not able to conclude on the evidence before us that the document necessarily came into existence after 1992. The Solicitors who disclosed it to Mr McKenzie or Mr Murdoch fairly state that they do not know when that document was first disclosed by the employers to their own insurers who would clearly need to have it in order to deal with the personal injury claim. Such a document would be necessary to deal with that claim. The fact that the record of absences ends in 1991 suggests that it was a document produced much earlier than 1994, and we are not able to conclude that the change took place in 1994 and not in 1992 as the company claimed.However, even if a conclusion adverse to the employers is reached upon that point, we cannot find that as a good reason for allowing this appeal or for a fresh hearing before the Industrial Tribunal. Where the documents are comparable, the absences are stated identically in the two documents set before the Tribunal and the fresh document. The alteration to the heading was obvious and had Mr Murdoch thought it appropriate to canvass whether the changes are alleged to have taken place retrospectively in the way they are recorded, it was open to him to take that point at the Tribunal.There was strong evidence, as appears from the paragraphs of the Tribunal decision which we have cited, that when compared with other employees Mrs Harper's record of absences was a bad one. No serious attempt has been made to challenge the merits of the decision which was reached. Mr Murdoch took all points which he thought it appropriate to take. Even if he had available to him the fresh document we cannot think it would have made any difference whatever to the Tribunal's view of the credibility of Mr Day, but even if it had cast some doubt upon that, having regard to the absence record and the lack of substantive challenge to it, it cannot in our view have made any difference to the decision which was reached.We are grateful to Mr McKenzie for his submissions which have been clearly and fairly presented, but we can see no merit in this Appeal which must accordingly be dismissed.